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Creative Cross-Examination Pays Off

Empire Justice Center July 31, 2020

Mike Telfer, an attorney in the Albany office of the Legal Aid Society of Northeastern New York, is  never one to shy away from challenging cross-examinations.  He successfully represented a client at a hearing in March 2020 at which he got to take on both a psychologist Medical Expert (ME) and a Vocational Expert (VE).

 

Based on the ME’s testimony as to the claimant’s limitations, Mike had little doubt the Administrative Law Judge (ALJ) would have issued an unfavorable decision.  Undaunted, Mike asked the ME a number of questions.  Had he reviewed the other opinions in the file?  Did he agree with the other opinion evidence of record?  Was he was aware the client lived in a certified apartment program where she received various skills training? Mike made sure the ME knew the claimant lived in a congregate care setting.  He also described the client’s IQ scores and her school records to the ME as it appeared the ME was not  given access to the E exhibits.

 

Based on Mike’s cross-examination, the ME agreed that the evidence of record supported a limitation due to the client’s need for occasional redirection during the workday.  Based on that limitation, along with off-task restrictions and absences, the VE testified there would be no jobs she could perform.  Although the ALJ did not include off task and absences in his ultimate RFC finding, he did include the limitation that Mike had elicited from the ME.  As a result, the ALJ issued a fully favorable decision.  As a bonus, Mike convinced the ALJ to reopen the claimant’s earlier SSI and Childhood Disability Benefits claims, which had been denied initially but within 12 months of the current SSI application. See 20 C.F.R. §§ 404.988 & 416.1488.

 

Congratulations to Mike for his creative – and persistent – advocacy.